The Big Apple needs to seize the opportunity created both by PlaNYC 2030 and by the climate black hole that still resides in Washington to cut its climate-changing CO2 emissions 30% by the year 2030. Whatever the storms over the now-deceased congestion-pricing scheme, no one’s opposing this 30x30 idea and polls point to a public will to do something to cut the City’s carbon footprint. In 2007, the City Council passed Local Law 55. It sets out to transform 30x30 from an aspiration into a requirement. However, the law does little more than tip its hat to this goal. It does not set out a strategy, establish a plan or assign responsibilities to any City agency. Unlike many environmental protection statutes, there’s no provision for allowing citizen suits, which can spur agencies to action. Put simply, there is no penalty for failure, so this law has no teeth. All the City’s designated climate office can do is give advice in case things don’t work out well. As a practical matter, this means that the Mayor’s carbon cutting target could spend eternity on somebody’s bookshelf unless more is done starting now.

Here’s my proposal. New York ought to create a Board of Sustainability and Climate Change (“BSCC”), patterned on the City’s Board of Health. It should be given the ultimate responsibility and oversight powers for achieving PlaNYC’s 30x30 goals, and should have the longevity to guard against backsliding. It could also have responsibility for climate adaptation plans, which are sure to entail real costs and arouse stirring controversy, because as an expert entity, the Board would have a degree of insulation from this controversy.

Like the City’s venerable Board of Health, which started out in 1805 with the dramatic evacuation of neighborhoods stricken with yellow fever, followed up by initiating the systematic collection of mortality data, the BSCC must be set up to be in business for the long haul. And like the Board of Health, which was insulated from political influence by an act of the New York State Legislature back in 1866, the new BSCC should be composed of members who are appointed by the Mayor for fixed but overlapping terms; overlapping so that an incoming Mayor cannot replace the entire Board. If the Chair were a City commissioner, then the Chair alone would serve at the pleasure of the Mayor. Like most judges as well as the Governors of the Federal Reserve Board, who are appointed to fourteen-year terms, they cannot be dismissed without cause. The City Planning Commission established in 1936 comes to mind as another local precedent.

At a March 2008 conference at New York University, Law Professor Richard J. Lazarus presented a paper with the impossible to improve on title, "Ulysses, The Sirens of Politics and Climate Change: Binding the Present to Liberate the Future". Professor Lazarus referred to entities like the Federal Reserve Board as “sticky” institutions. Such institutions are designed with precommitment strategies, “that deliberately make it hard (never impossible) to change the law in response to some kinds of concerns while providing avenues for change in response to other concerns that are in harmony with the law’s central purpose”. Although Lazarus focuses his recommendations at the federal level, in light of the young and rapidly evolving science of climate change as well as the myriad policy and technical solutions that are being proposed and tested in real time, a sticky BSCC makes good sense at the municipal level too.

A specific precommitment strategy for a New York City climate board should be that one seat must be occupied by a senior member of the Mayor’s staff and that all other members be drawn from relevant professional, civic or community backgrounds and currently hold no government positions. Such design features “insulate programmatic implementation from powerful political and economic interests propelled by short term concern”, while allowing for the incorporation of new science, technology and experience as they emerge.

Let me be clear that I am not proposing a Climate Change Authority. Typically, authorities are sizable bureaucracies that are funded, at least in part, with proceeds from bonds that they issue. Critics of authorities often cite a lack of transparency and accountability as flaws inherent in their institutional nature.i The Board I propose should be kept small. Board membership would be a distinguished and potent civic responsibility, not a career.

Created by an amendment to the City Charter, the BSCC should be given oversight powers related to both the City’s Building Code and its energy conservation provisions as well as to New York’s progress toward meeting today’s commitment to cut its carbon footprint 30% by 2017. A potent precommitment for the Board could be a required role in the mandated tri-annual review of the City’s Building Code that was overhauled in 2007. Another precommitment could be a designated role in reviewing and revising sustainability indicators for City agencies.

The BSCC would have direct access to the Mayor, although its routine relationship with government staff and would occur through its ex officio member. It would also maintain an independent relationship with the City’s other elected officials and be in control of its own media relations. Such features would create the right level of “stickiness” needed for smart and effective climate mitigation and adaptation actions while keeping the faith with the openness and responsiveness that we aspire to in a democracy.

Can such a Board solve all our problems? Hardly. It would have neither a full time staff nor its own funding source. Its power would lie in its “stickiness”, its independence, its relationship to the Mayor, and its legitimacy in the eyes of the public. Such legitimacy would have to rest on two pillars.

First, the sitting Mayor and public, or more accurately in New York City its many publics, must believe that shrinking the City’s climate impacts and improving its overall sustainability are high priorities. Even if climate change becomes yesterday’s news, and it will at times, cutting our carbon footprint will not stay on the political agenda if it vanishes from the core list of public expectations. The durability and urgency of our 30x30 agenda can be achieved by linking our current carbon-consumption habits to other practical concerns, such as the reliability of the electric power grid and the cost of heating and lighting our homes, offices, schools and hospitals. The potential for expanding green collar industry and job opportunities, thus adding to the public will on sustainable climate action, is inherent in this linkage.

The second pillar would be rooted in the Board’s ability to respond to new facts on the ground in a way that New Yorkers trust. Climate science will evolve. Greener, more energy efficient building designs and cleaner energy sources will appear; some of them won’t deliver on their potential and either will be improved or junked. Municipal codes governing everything from taxes and fees, buildings and energy consumption, to land use and zoning will be challenged and changed. Hard choices will confront us and a “sticky” Climate Board will have an important role to play.ii

Some years ago, when Rudolph Giuliani was Mayor, I was preparing testimony about rules that had been proposed by the City’s Health Department regarding lead paint poisoning when I discovered that there were several long-standing vacancies on the Board of Health. As a testament to my belief in the legitimacy of the Board, I felt oddly bereft; but that was long ago. Now, if New York City establishes a sticky Climate Protection Board, the sign on its front door ought to read: “We should try to be the parents of our future rather than the offspring of our past.” Miguel de Unamuno

i Certainly, the Metropolitan Transportation Authority did nothing to enhance its public status by reneging on a promised package of $30 million in mass transit enhancements that was offered as a sweetener related to the recent fare hike. (New York Times 3.24.08) To add insult to injury for fans of the congestion-pricing scheme, the Authority unveiled this take-back a week before the New York State Assembly was scheduled to vote on a plan that relied on promises to be kept rather than facts on the ground.
ii In these ways, the BSCC would differ from the Board of Health, which has extraordinary powers. As set forth in Section 558 of the City Charter, the Board of Health can amend or repeal sections of the Health Code. It may add, amend or repeal regulations adopted pursuant to the Health Code. It can serve as a tribunal to enforce Code provisions and it can impose fines or penalties and can imprison Health Code violators. Whether and how the BSCC should be granted any similar powers is a subject for further consideration.